“There is an institution that’s doing it the right way, and that’s the federal courts,” Girdner said.
Federal courts use an e-filing system called Public Access to Court Electronic Records, or PACER. When a lawyer files a document in PACER, it’s immediately visible online to the public, even on a weekend or court holiday.
PACER charges 10 cents per page to view records. That makes it a frequent target of open-government advocates, but as Girdner pointed out, 10 cents per page is much less than many state courts charge to make copies of a file.
“There are plenty of state courts that are charging a buck a page,” Girdner said. And with PACER, a reporter doesn’t have to physically go to the courthouse.
Other journalists, including the California Newspaper Publishers Association, have joined Courthouse News’ battles for immediate access, and the Reporters Committee for Freedom of the Press served as an amicus. But there aren’t many news outlets that are still in the businesses of stalking the courthouse every day. They either outsource that job to Courthouse News, or rely on their sources to let them know when there might be a juicy new case coming.
Bob Egelko, who covers courts for the San Francisco Chronicle, said he thinks courts should make new filings immediately available to the press and the public. But the Chronicle doesn’t monitor all new filings, and waiting a day or even a week to find out about a high-profile case doesn’t change his coverage.
“I personally don’t care that much if I find out about a lawsuit the day after it’s filed, as long as the competition didn’t find out about it yesterday,” he said.
Courthouse News makes its living on up-to-the-minute litigation coverage. For anyone else, Egelko may have a point. If a lawsuit is worth reading about today, does it become any less so tomorrow?
Girdner would say that yes, days-old or weeks-old news is less newsworthy. “There’s a human interest in immediacy, in what just happened,” he says. “Reading yesterday’s news can be interesting, but it’s not as interesting as today’s news.”
But he also sees important principles at stake in courts backtracking on prompt access—and he doesn’t believe they only affect niche outlets like his. “This is a war,” Girdner said in a follow-up interview. “The journalists just don’t know it yet.”
There’s no timetable yet for when the trial court might hear the Courthouse News case. A win by the newswire there would compel only the Ventura County courthouse to change its practices—but the logic and holdings of Wardlaw’s opinion about the First Amendment implications apply across the Ninth Circuit.
Wardlaw’s opinion doesn’t tackle the merits of the case against Ventura County, but Girdner took hope from it anyway.
“You look at the examples she uses to show that it’s very feasible,” he said, “…and one can very fairly conclude that the judge is saying it is feasible, and she would question why it’s not being granted.”